Tamil Nadu

North Chennai

191/2014

N.Girija,W/o.R.Nethaji, - Complainant(s)

Versus

The Sales Manager,Chennai Ford, - Opp.Party(s)

C.H.Vinobha Gandhi

25 May 2017

ORDER

                                                            Complaint presented on:  19.09.2014

                                                                Order pronounced on:  25.05.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 25^th DAY OF MAY 2017

 

C.C.NO.191/2014

 

N.Girija,

W/o.R.Nethaji,

No.500, 25^th Street,

K.K.Nagar,

Chennai – 600 078.                                                  .... Complainant

 

..Vs..

	1.The Sales Manager, Chennai Ford, No.4233, Poonamalli High Road, Arumbakkam, Chennai – 600 106.   2.The Manager, AXIS Bank Loan Centre, No.6A, Centennial Square, 2nd Floor, Dr.Ambedkar Road, Kodambakkam, Chennai – 600 024.   3.President and Head (Law), AXIS Bank Central Office, Maker Tower, 1st Floor, Cuffe Parade, Kolaba, Mumbai – 400 005.
	...Opposite Parties

Date of complaint                                 : 30.09.2014

Counsel for Complainant                      : C.H.Vinobha Gandhi, J.Sunder,

                                                                 V.Mohanapriya

         

Counsel for 1^st opposite party                 : Ms/.M.Swaminathan, S.Radha Devi

                                                                S.Ramamurthy, B.R.Sankaranarayanan       

 

Counsel for 2^nd & 3^rd opposite parties            : M/s. R.Palani Kumar Ramesh,

                                                                 R.Venkata Varathan     

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the Complainant  to direct the 1^st opposite party to pay compensation of Rs.1,00,000/- and to direct the opposite parties 2^nd  &  3^rd to repay the EMI for 4 months amounting to Rs.64,348/-  with interest and compensation of Rs.5 lakhs with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant had booked New “Ford Eco Sport” car with 1^st opposite party/dealer on 06.12.2013, by remitting a payment of Rs.1,00,000/- by way of demand draft drawn on City Union Bank, K.K.Nagar, Chennai.  After that the Complainant approached the 2^nd opposite party/Bank for a loan of Rs.7,45,000/- to purchase the car and the said loan was sanctioned on 13.03.2014. The Complainant agreed to repay a sum of Rs.16,087/- by way of EMI commencing from 01.04.2015 through ECS and also gave  cheques as security to him.

          2. However, the Complainant had not received any communication from the 1^st opposite party about the status of the booking of the car. When the Complainant also questioned the 1^st opposite party about the booking of car and they gave vague reply. Likewise the Complainant also did not receive any loan cheque from the 2^nd opposite party. Further the 2^nd opposite party without disbursing the loan started collecting the installment amount through EMI. Thereafter the Complainant gave letter dated 24.07.2014 to stop ECS payment. Thereafter she issued legal notice dated 06.08.2014 to the 1^st opposite party and legal notice dated 31.08.2014 to the 2^nd and 3^rd Opposite Parties. The 1^st opposite party gave reply that the Complainant had made payment through broker only and it was the broker who had misused her demand draft. Therefore the 1^st opposite party who had failed to book the car even after receipt of Rs.1 lakh  advance amount and the 2^nd and 3^rd opposite parties started collecting the EMI from 01.04.2014 without disbursing the loan amount to her proves that they have committed deficiencies on the part of the opposite parties. Hence the Complainant filed this complaint  to direct the 1^st opposite party to pay compensation of Rs.1,00,000/- and the opposite parties 2^nd  &  3^rd to repay the EMI for 4 months amounting to Rs.64,348/-  with interest and compensation of Rs.5 lakhs with cost of the complaint. 

3.WRITTEN VERSION OF THE 1^st OPPOSITE PARTY  IN BRIEF:

          The Complainant never visited the showroom of the 1^st opposite party and he had made payment for the purchase of the car through 3^rd person who had misused the demand draft amount. On 16.05.2014, the 1^st opposite party received e-mail from Poongodi that she has transferred Rs.2,00,000/- in the name of S.Rajendran and N.Girija towards  booking of  “Ford Eco Sport”. Regarding sanctioning of car loan this opposite party had nothing to do with the same and he had not received any amount from the 2^nd opposite party. Therefore this opposite party has not committed any deficiency in service for recovery of amount from the 2^nd opposite party by the Complainant and prays to dismiss the complaint with cost.

4.WRITTEN VERSION OF THE 2^nd & 3^rd  OPPOSITE PARTIES IN BRIEF:

          In the year 2014 the Complainant approached the 2^nd opposite party with a request to sanction the Vehicle Loan. The 2^nd opposite party after verification of the documents produced by the Complainant and satisfied with the same sanctioned a Loan for a sum of Rs.7,45,000/- to the Complainant. The Complainant executed a Loan cum Hypothecation Agreement. The Complainant agreed to pay the principal amount along with interest by monthly installments and the EMI is fixed at Rs.16,087/- p.m for a period of 60 months. The 1^st ECS payment is returned by the Complainant banker and the same was intimated to the Complainant by the 2^nd opposite party. Upon receipt of the information the Complainant approached the 2^nd opposite party on 07.04.2014 and paid the 1^st installment by way of cheque bearing No.001071, dated 07.04.2014. Even at that point of time also the Complainant did not disclose the issues between her and the 1^st opposite party. The 2^nd opposite party further submits that as per the terms of the Loan Cum Hypothecation Agreement once the Loan is sanctioned the borrower is liable to pay the EMI as per the schedule. The stand of the complainant in the present case is that there is dispute between her and the 1^st opposite party with regard to booking of the car and the above issue is not been brought to the notice of the 2^nd opposite party. It is the duty of the Complainant to inform the dispute to the 2^nd opposite party and request the 2^nd opposite party to cancel the vehicle loan which was sanctioned to her. However in the present case the Complainant herself approached the 2^nd opposite party on 07.04.2014 and paid the 1^st installment by way of cheque by admitting her liability. Upon receipt of the legal notice only the 2^nd opposite party came to know about the issue between the Complainant and the 1^st opposite party. Therefore for the fault of the Complainant the 2^nd opposite party is not liable to pay any amount much less the amount which is claimed in the present complaint. As per the loan agreement, the 2^nd opposite party has closed the loan and transferred the excess amount of Rs.80,435/- on 29.12.2014 in NEFT to the Complainant current account maintained with City Union Bank at Kumbakonam. Hence the 2^nd and 3^rd opposite parties have not committed any deficiency in service and prays to dismiss the complaint with cost.

5.POINTS FOR CONSIDERATION:

          1.Whether there is deficiency in service on the part of the opposite parties?

          2.Whether the complainant is entitled to any relief? If so to what relief?

6.POINT NO:1

          The admitted facts are that the Complainant approached the 1^st opposite party to purchase “Ford Eco Sport” car and paid a sum of Rs.1,00,000/-  for booking the said car by way of Ex.A1 demand draft drawn on City Union Bank Chennai and the 1^st opposite party issued Ex.A2  Proforma Invoice in respect of value of car for Rs.11,81,600/- and thereafter the Complainant approached the 2^nd opposite party for a car loan of Rs.7,45,000/- and the said loan was also sanctioned and the same was intimated to the Complainant under Ex.A4 and as per that letter the loan was sanctioned by the 2^nd opposite party on 13.03.2014 and the said letter also  contains EMI schedule that the Complainant has not repaid a sum of Rs.16,087/- with effect from 01.04.2014 for 60 months and the Complainant also executed Ex.B1 car loan hypothecation agreement to the 2^nd opposite party and she had also executed Ex.B2 customer request form loans and the 2^nd opposite party received EMIs for 4 months from April 2014 to July 2014 and thereafter the Complainant gave stop payment to the 2^nd opposite party under Ex.A5 letter dated 24.07.2014.

          7. During the pendency of this complaint, the Complainant and the 1^st opposite party comprised the case only against the 1^st opposite party and filed memo to that effect on 10.04.2017 and the said memo was recorded and the case against the 1^st opposite party was dismissed and in respect of the 2^nd and 3^rd opposite party it is ordered to continue the proceedings against them.

          8. The contention of the Complainant that though the 2^nd opposite party sanctioned the loan neither the said loan amount of Rs.7,45,000/- was paid to her by way of cheque nor it was paid to the 1^st opposite party dealer and without disbursing such sanctioned amount loan the 2^nd opposite party realized the EMI at Rs.16,087/- per month from April 2014 to July 2014 totaling a sum of Rs.64,348/- is deficiency on the part of the 2^nd and 3^rd opposite parties.

          9. The 2^nd opposite party sanctioned the loan amount of Rs.7,45,000/- sanctioned in favour of the Complainant. Ex.A3 & Ex.A4 are the proof for the sanction of the said loan amount. However, in Ex.A3 and Ex.A4 to whom the loan    has been disbursed. The 2^nd opposite party has not specifically pleaded or stated to whom the loan amount was paid. He simply stated the loan amount disbursed in Ex.A3 and Ex.A4 is not sufficient for disbursal of the loan.

          10. The 2^nd opposite party would further state that as per hypothecation agreement the loan amount have to be repaid by way of EMI from the date of sanction. Ex.A1 is the hypothecation agreement and in the said agreement at page 10 the Complainant agreed to pay the 1^st EMI on 01.04.2014 and the Complainant also signed the said agreement agreeing for such repayment date with other conditions. It is a fact that the 1^st ECS payment was returned and thereafter the Complainant himself paid the 1^st EMI by way of cheque without any protest that the loan amount was not paid to him. Admittedly 4 installments have been paid by the Complainant and after that realizing that the car was not booked by the 1^st opposite party. She had issued Ex.A5 letter dated 24.07.2014 to the 2^nd opposite party to stop payments. Therefore till she gave instructions to stop payment to the 2^nd opposite party she paid all the 4 installments without any protest.

          11. The  Complainant sought relief for the recovery of aforesaid 4 installment amount paid by way of EMI a sum of Rs.64,348/- shall be paid by the 2^nd & 3^rd opposite party to her. The 2^nd opposite party categorically stated in their written version that on 29.12.2014 they paid excess amount of Rs.80,435/- by way of NEFT to the Complainant current account maintained with City Union Bank  at Kumbakonam. Such payment was also proved in Ex.B3 statement of the Complainant that the amount was paid to her. Though the Complainant claims Rs.64,348/- the opposite parties 2^nd & 3^rd have paid Rs.80,435/- more than the amount sought  by the Complainant. The above facts are not denied by the Complainant in his proof affidavit which was filed by the Complainant after filing of the aforesaid written version. Therefore, it is held that the opposite parties 2nd & 3^rd repaid the EMI s deducted from the Complainant amount.

          12. The fact remains that though the 1^st opposite party received Rs. 1 lakh from the Complainant by way of demand draft he had not booked the car in favour of the Complainant. This fact was brought to the knowledge of the 2^nd and 3^rd opposite party only through Ex.A6 legal notice and not before. After stop payment instruction given by the Complainant, the deduction of EMI was stopped. The EMI paid by the Complainant only as per the Ex.B1 agreement since the opposite parties 2^nd & 3^rd have repaid the amount more so excess amount than what  was actually paid to them, we hold that the opposite parties have not committed any deficiency in service.

13.POINT NO:2

Since the Opposite Parties have not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

          In the result the complaint against the opposite parties 2 & 3 is dismissed. The Complainant against the 1^st opposite party is already dismissed on 10.04.2017. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 25^th day of May 2017.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 06.12.2013                   Demand Draft copy submitted before 1^st opposite

                                                     party

 

Ex.A2 dated 10.01.2014                   Proforma Invoice

 

Ex.A3 dated 12.03.2014                   Loan disbursement advice

 

Ex.A4 dated 13.03.2014                   Copy of Loan Disburse Letter & EMI Schedule

 

Ex.A5 dated 24.07.2014                   Stop payment letter

                    06.08.2014                   Copy of Legal Notice sent to 1^st Opposite Party

 

Ex.A6 dated 01.08.2014                   Copy of Legal Notice sent to 2^nd & 3^rd opposite

                                                   parties and acknowledgement of opposite parties 2.

 

Ex.A7 dated 14.08.2014                   Copy of the reply sent by 1^st opposite party

 

Es.A8 dated 11.09.2014                   Copy of the Re-joinder by 1^st Opposite Party  

 

Ex.A9 dated NIL                     Returned Cover.

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

 

Ex.B1 dated NIL                     Power Drive – Car Loan Documentation

 

Ex.B2 dated 07.04.2014                   Customer Request Form – Loans

 

Ex.B3 dated 04.08.2015                   Account Statement

 

Ex.B4 dated NIL                     Bank Statement

 

Ex.B5 dated NIL                     Transferred  e-mail letter

 

 

 

MEMBER – II                                                               PRESIDENT